I am sure Mr. Sarbajit with all your intellectual understanding and experience would take cognizance of these issues and start a healthy discussion on RTI.
Regards
Kuldip
On Tue, Nov 23, 2010 at 9:32 PM, Sarbajit Roy <sroy.mb@gmail.com> wrote:
Dear Venkatesh
I have not elected to receive emails for any of these groups listed
below and yet I am receiving unasked for posts. Please unsubscribe me
from HumJanenge Google Groups immediately.
FYI, this is not the first time I have asked you people to do so.
PS: Surely Shailesh Gandhi has circulated these draft Rules to you and
all his other NCPRI working committee colleagues like he did those
DoPT Minutes of 14.Oct.2009. So why don't YOU share these with
everyone - in the LARGER PUBLIC INTEREST ??
PPS: When you give out your "alternate email" <alternate email:
<mailto:nayak.venkatesh@gmail.com> nayak.venkatesh@gmail.com > in your
posts why then complain when people /egroups send emails to it ?.
Sarbajit
---------- Forwarded message ----------
From: Venkatesh Nayak <venkatesh@humanrightsinitiative.org>
Date: Tue, 23 Nov 2010 13:08:54 +0530
Subject: [HumJanenge-YG] Alert: RTI Rules being drafted in secrecy in
India- DoPT must coply with CIC decisions on public consultation on
draft laws, policies and rules
To: HumJanenge@yahoogroups.co.in, jharkhand@yahoogroups.co.in,
rti4ngo@yahoogroups.com, childrensrighttofood@googlegroups.com,
loksatta_initiative@yahoogroups.com,
ncpriworkingcommittee@yahoogroups.com,
urja-delhi-rwas@googlegroups.com, pwap@yahoogroups.com, Dalits Media
Watch <PMARC@dgroups.org>, ncprimailinglist@yahoogroups.com,
antibriberycampaign@yahoogroups.com,
development_communication_in_Orissa-owner@yahoogroups.com
Dear all,
I am writing to alert you about Government of India's attempts to draft a
new set of Rules under the Right to Information Act, 2005. Some of you may
already be aware of this exercise. I am only adding to this debate a very
important element, namely, the current absence of and urgent need for public
consultation.
The minutes of the meeting held at the Central Information Commission (CIC)
on 16th November 2010 indicate that it has been asked to comment on a set of
draft RTI Rules prepared by the Government of India. The relevant extract
from the minutes is given below:
"Agenda 1: Draft RTI rules- for discussions
Commission discussed the draft rules and suggested some modifications. The
changes as suggested by the Commission shall be incorporated and sent to the
Government at the earliest. (Action: Secretary/JS (law)) "
The complete text of the minutes of this meeting is attached and may also be
accessed on the CIC website at:
http://cic.gov.in/CIC-Minutes/Minutes16112010.pdf
In 21st century where the RTI Act seeks to establish a regime of
transparency, rules governing the processes of seeking and obtaining
information are being discussed by only a handful of people behind closed
doors. There is no official word on what the draft RTI Rules contain. Till
date neither the Department of Personnel and Training (DoPT) the
administrative depatrment for the RTI Act, nor the CIC, has taken any step
to consult with the people of India on these draft Rules. The people of
India- the world's largest democracy are its the primary stakeholders and
have a deeply vested interest in ensuring that there is transparency in the
administration, especially in policy making and implementation. The secrecy
surrounding the draft RTI Rules is in clear violation of two decisions of
the CIC emphasising the duty of public consultation while drafting laws and
policies. Whether the CIC has reminded the DoPT about the imperative of
public consultation on these Draft RTI Rules in not publicly known.
Public Consultation is necessary while drafting legislation or policy: CIC
directs the Delhi Government in July 2010
In July 2010 a single member bench of the CIC directed the Government of the
National Capital Territory of Delhi (GNCTD) to fully comply with Section 4
of the RTI Act while formulating draft laws and policies. In this decision
the CIC observed as follows:
" A plain reading of Section 4(1) (c) of the RTI Act suggests that every
public authority is required to publish or disclose all facts and
circumstances which are relevant and taken into account while formulating
policies and taking decisions that would affect the public. Section 4(1)(c)
of the RTI Act requires proactive disclosure of proposed laws/ policies and
amendments thereto or to existing laws/ policies to enable citizens to
debate in an informed manner and provide useful feedback to the government,
which may be taken into account before finalizing such laws/ policies. Given
that the DP Bill" (Delhi Police Amendment Bill) "is a significant
legislative change, the relevant public authorities involved in drafting of
the said bill had a duty to proactively disclose its contents under Section
4(1)(c) of the RTI Act... The public authority should have disclosed the
contents of the DP Bill suo motu and by omitting to do so, the very purpose
of Section 4(1) of the RTI Act stands defeated. The Commission has further
observed that at present, the GNCTD is not fully complying with Section 4 of
the RTI Act and therefore, is of the view that citizens must be provided
with means to debate legislative and policy changes which are likely to
affect public lives as contemplated by the GNCTD. The citizens individually
are the sovereigns of the democracy and they delegate their powers in the
legislature. The RTI Act has recognized this and Section 4(1) (c) is meant
to ensure that the citizens would be kept informed about proposals for
significant legislative and policy changes...
In view of the aforesaid, the Commission, under the powers vested in it vide
Sections 25(3) (g) and 25(5) of the RTI Act hereby directs the Chief
Secretary, GNCTD to develop a credible mechanism in all departments for
proactive and timely disclosure of draft legislations/ policies and
amendments thereto or to existing laws/ policies in the public domain, as
required under Section 4(1)(c) of the RTI Act, during the process of their
formulation and before finalization."
The complete text of this decision is attached. It is also accessible at:
http://rti.india.gov.in/cic_decisions/CIC_SG_C_2010_000345_8440_M_37452.pdf
Public Consultation is necessary while drafting legislation or policy: CIC
full bench directs the Central Government in Septmber 2010
In September 2010 a full bench of the CIC reiterated this stand and directed
the Cabinet Secretariat under the Government of India and the DoPT to take
steps to create a mechanism for public consultation on draft laws before
they are tabled in Parliament. In this decision the CIC observed as follows:
"The Commission further recommends u/s 25 (5) that Cabinet Secretariat
considers amending Part V of Circular No. 1/16/1/2000-Cab of 15.4.2002 to
allow for public consultation in appropriate form."
The complete text of this decision is attached. It is also accessible at:
http://rti.india.gov.in/cic_decisions/CIC_WB_C_2010_000120_T_41373.pdf
What does Part V of Circular No. 1/16/1/2000-Cab of 15.4.2002 contain?
The Cabinet Secretariat issued a circular in April 2002 instructing all
departments and ministries under the Government of India on the methodology
of preparation of Cabinet notes. Drafts of proposed laws or amendments to
existing laws are attached to draft Cabinet notes and circulated to the
relevant ministries and departments for consultation. Part V refers to the
procedure for conducting such inter-ministerial consultations. During such
consultations with various ministries the draft Cabinet note is circulated
with the classificatory label- "TOP SECRET" So save a handful of senior
officers, all other citizens of India are excluded from this consultation
process. The full bench of the CIC directed the Cabinet Secretariat to amend
this portion of the circular and create appropriate spaces for public
consultation.
The complete text of this circular is attached. It is also accessible at:
http://cabsec.nic.in/showpdf.php?type=circulars_april_2002
<http://cabsec.nic.in/showpdf.php?type=circulars_april_2002&special>
&special
Despite the principle of mandatory public consultation having been laid down
by the CIC, the DoPT has not yet begun consultation with the people of India
on the draft RTI Rules. If the draft is ready for consultation with the CIC
which is a body outside of Government, surely it can be opened up for a more
widepsread consultation with the people of India who are using this law
every day. Surely no harm would be done if people's views are elicited on so
important a subject. The Rules lay down the detailing of the framework for
accessing information under the RTI Act. The people of India have a right to
be consulted on the draft Rules as they are the primary users of the RTI
Act. THE PEOPLE OF INDIA HAVE THE RIGHT TO BE CONSULTED NOW.
The principle of public consultation on draft Rules is more than a century
old in India
The principle of consulting people on draft Rules under any law made by
Parliament or a State legislature is not a recent one. It is mentioned in
the General Clauses Act, enacted under the British Raj in 1897. The complete
text of this Act is available at:
<http://trivandrum.gov.in/trivandrum/images/pdfs/generalclausesact.pdf>
http://trivandrum.gov.in/trivandrum/images/pdfs/generalclausesact.pdf This
law explains how common terms and phrases used in all laws enacted before
and after independence must be interpreted or understood. It is the basic
law for interpreting the meaning of terms used in the Constitution as well
(see Article 367, Constitution of India- accessible at:
http://indiacode.nic.in/coiweb/welcome.html). According to Section 23 of the
General Clauses Act:
"Provisions applicable to making of rules or bye-laws after previous
publication.- Where, by any (Central Act) or Regulation, a power to make
rules or bye-laws is expressed to be given subject to the condition of the
rules or bye-laws being made after previous publication, then the following
provisions shall apply, namely:- The authority having power to make the
rules or bye-laws shall, before making them, publish a draft of the proposed
rules or bye-laws for the information of person likely to be affected
thereby.
The publication shall be made in such manner as that authority deems to be
sufficient, or, if the condition with respect to previous publication so
requires, in such manner as the (Government concerned) prescribed.
There shall be published with the draft a notice specifying a date on after
which the draft will be taken into consideration.
The authority having power to make the rules or bye-laws, and where the
rules or bye-laws are to be made with the sanction, approval or concurrence
of another authority, that authority also, shall consider any objection or
suggestion which may me received by the authority having power to make the
rules or bye-laws from any person with respect to the draft before the date
so specified.
The publication in the (Official Gazette) of a rule or bye-law purporting to
have been made in exercise of a power to make rules or bye-laws after
previous publication shall be conclusive proof that the rule or byelaw has
been duly made."
In simple terms Section 23 explains that an administrative department may
make draft Rules public knolwedge through a gazette notification, give
people the time to file suggestions and objections on the draft Rules and
take such comments into consideration before finally notifying the Rules.
The administrative department is free to fix a time limit for this
consultation.
Why is this principle not observed in practice?
The principle of public consultation on draft Rules is sidestepped by almost
all governments by using a simple device. They simply fail to mention the
phrase - "subject to previous publication" in the rule-making provision of a
statute. When this phrase or its equivalent is not mentioned, the Government
is not duty bound to consult with people on draft Rules. Section 23 of the
General Clauses Act becomes ineffective. It has remained a dead letter for a
long time except in some instances in States like Karnataka. So the noble
principle of public consultation developed under foreign rule,100 years ago,
is mostly ignored by democratically elected governments in independent
India. This is one of the ironies of governance in India today. More often
than not undue secrecy governs the exercise of drafting laws, rules and
regulations.
What can you do to make the discussion on the draft RTI Rules more
transparent and participatory than it is today?
You may send an email or a post card or a letter to the Minister and the
Secretary in charge of DoPT urging them to publicise the draft RTI Rules and
allow people adequate time to offer their comments and suggestions. The DoPT
is under the charge of a new Minister of State: Shri V. Narayanasamy and a
new Secretary Ms. Alka Sirohi.
You may use the following sample message or adapt it as you think fit:
"Dear sir, (if addressing the Minister) or Dear Madam, (if addressing the
Secretary)
I/We have learnt that your Ministry has drafted a new set of Rules under the
Right to Information Act, 2005 (RTI Act) and sought comments from the
Central Information Commission. These draft Rules have not been placed in
the public domain.
The RTI Act was drafted after widespread consultations with the people.
Civil society organisations actively participated in these consultations.
These consultations have helped in crafting a robust law that has become a
model for many countries.
There is no justification for drafting the Rules under the RTI Act in
secrecy. In September 2010 the Central Commission directed the Government to
India to open up draft laws and policies for public consultation before they
are finalised for introduction in Parliament. Your Ministry has not yet
honoured this directive in relation to the draft RTI Rules.
I/We urge you to direct your Ministry to immediately place the draft Rules
in the public domain and give us a month's time to send comments and
recommendations. The existing RTI Rules must not be changed without
undertaking public consultation in a credible manner.
Thanking you,
Yours sincerely,
(Name/postal address/signature of the sender)"
Please send your email/postcard/letters to:
Shri V. Narayanasamy
Minister of State for Personnel, Public Grievances and Pensions
Government of India
North Block
New Delhi- 110 001
Email: mos-pp@nic.in, <mailto:samyselvi@sansad.nic.in>
samyselvi@sansad.nic.in
and to
Ms. Alka Sirohi, IAS
Secretary to the Government of India
Department of Personnel,
Ministry of Personnel, Public Grievances and Pensions
North Block
New Delhi- 110 001
Email: secy_mop@nic.in
In order to access the our previous email alerts on RTI and related issues
please click on:
<blocked::http://www.humanrightsinitiative.org/index.php?option=com_content&
view=article&id=65&Itemid=84>
http://www.humanrightsinitiative.org/index.php?option=com_content&view=artic
le&id=65&Itemid=84
You will find the links at the top of this web page. If you do not wish to
receive these email alerts please send an email to this address indicating
your refusal.
[I have not posted this message on humjanenge@googlegroups.com. However this
message may be automatically relayed through that group to unintended
recipients. My apologies in advance for the inconvenience caused to such
recipients.]
Venkatesh Nayak
Programme Coordinator
Access to Information Programme
Commonwealth Human Rights Initiative
B-117, I Floor, Sarvodaya Enclave
New Delhi- 110 017
tel: 91-11- 43180215/43180200/ 26864678
fax: 91-11- 26864688
website: www.humanrightsinitiative.org
<http://www.humanrightsinitiative.org/>
alternate email: <mailto:nayak.venkatesh@gmail.com>
nayak.venkatesh@gmail.com
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